Derbyshire County Council (17 017 561)

The Ombudsman's final decision:

Summary: Mr C complains the Council failed to comply with recommendations agreed during a previous Ombudsman investigation. Mr C says the Council's overall compensation offer is not acceptable and he still has concerns about possible soil contamination following remediation works. The Ombudsman has found no fault by the Council.

The complaint

The complainant, whom I shall refer to as Mr C, complains the Council has failed to comply with the recommendations it agreed during a previous Ombudsman investigation. The earlier complaint was about the Council's contractor failing to comply with the terms of its contract to remove sediment from a canal and spread it on Mr C’s land. The Ombudsman previously ended his involvement on the basis the Council agreed to:

complete remediation works on Mr C’s land by the end of September 2017 (provided the weather allows and there is agreement from Mr C and the Environment Agency);

continue to consider Mr C’s compensation claim from June 2017, cross-referencing it with its records so it can begin negotiations with him as soon as possible after completing the works; and

present its final position to Mr C on his compensation claim by 1 December 2017.

The Ombudsman also said the compensation matters for negotiation should include the issue of the licence agreement.

Mr C says the Council failed to include the licence issue in the negotiations or consider properly his compensation claim. Mr C says there remains a dispute about the amount of land used under the original contract and the time and effort he spent in trying to engage with the Council and other agencies. Mr C also says the compensation does not include an amount for loss of interest or other benefit from the delay in receiving compensation.

Mr C says because of the Council's fault its compensation offer of £36,552.82 is not enough and he still has concerns about possible soil contamination following the remediation works.

The Ombudsman’s role and powers

We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

How I considered this complaint

I read the papers provided by Mr C and discussed the complaint with him. I have considered some information from the Council and provided a copy of this to Mr C. I have explained my draft decision to Mr C and the Council and considered the detailed comments received from Mr C before reaching my final decision.

What I found

Works were completed under the Council’s authority to dredge a stretch of canal. Mr C and the Council signed a licence agreement in 2013 to allow the Council to use his land for storing and spreading silt. The Council has accepted the resulting work was not completed to the required conditions by its contractor. The contractor used synthetic bags and some of these were buried on the land rather than removed and there was not enough mixing of the silt with the field soil. This led to Mr C raising concerns.

Key events

The first agreed action from Mr C’s previous complaint to the Ombudsman was to complete remediation works on his land by the end of September 2017. This timescale was subject to the weather and agreement from Mr C and the Environment Agency.

Remedial works were carried out between April and June to remove any remaining bagging material and to integrate unmixed silts into the field. Verification sampling and testing of field soil was completed in July and August 2017. Mr C says bags were still being removed into September. Wet weather during September delayed the cultivation of the field but this was completed before reseeding and a fertilizer application in October. This completed the remedial works which had been set out in the agreed remediation method statement.

The Council arranged testing on the newly established grass in May 2018 to complete the verification of the remedial works. This work had to wait until there was enough grass growth to test. The Council provided Mr C with the results and report at the beginning of July and copied this information to the Environment Agency.

There was some further works to the field in July 2018 to level out rutting and pick and remove stones. Mr C says the field remains rutted and I have drawn this to the Council’s attention.

I am satisfied most of the remediation works required to be completed on Mr C’s land by the end of September 2017 were completed by mid-October 2017. The original timescale was subject to weather and third-party considerations and while Mr C considers the works could have been completed sooner I see no evidence of undue delay that would constitute fault here by the Council.

The remaining agreed actions were for the Council to consider Mr C’s compensation claim from June 2017 with reference to its own records and present a final figure to Mr C by December 2017. The Ombudsman said the compensation matters for negotiation should include the issue of the licence agreement

The Council considered Mr C’s claim and confirmed its final position in early June 2018. This is five months after the agreed timescale of end December 2017. However, I note the verification testing of the newly established grass was not completed until May 2018 when there was enough growth to do so. I consider the results of this verification testing of the remedial works was material to Mr C’s compensation claim. I also note there were discussions with Mr C and his representative which revised the offer. In the circumstances, I do not consider the Council at fault in not providing its offer to Mr C sooner. The offer was available for Mr C to accept from June 2018 and there are no grounds for me to recommend the payment of interest for the period since that point.

The Council says its valuer calculated the compensation for loss of the use of the field in accordance with professional valuation practice and the method of valuation was agreed with Mr C’s own professional valuer as the correct approach. The Council increased the level to take into account the fact the whole field was re-cultivated by the Council rather than merely the affected areas. The Council says the additional cultivation was completed as a gesture of goodwill as otherwise some areas would have been left in an unimproved condition and resulted in an inconsistent quality in different areas of the field. The Council included this wider area as eligible for compensation. Mr C does not consider the wider area included constitutes a goodwill offer as he says the original works involved a larger area than agreed.

Mr C has questioned the field measurement but the Council says it has measured the area several times using mapping software and is confident the measurements used are correct. Mr C has not provided any evidence to show the measurements are incorrect. The Council presented the measurements and valuation to Mr C for his comments and agreed some adjustments as the project progressed.

The Council has included an amount in its compensation offer to Mr C for what it considers his reasonable time. The Council provided a schedule of meetings and telephone calls it used in calculating this element to Mr C. The Council says it appointed suitably qualified contractors and project managers at its own expense to complete the remedial works to an agreed programme. Mr C approved the contractors and professional experts completed regular monitoring of the work including verification testing of the soil and grass. The Council takes the view there was no need for Mr C to spend time supervising the process. The Council also notes the use of two professional agents by Mr C during the period and it has paid their fees.

There is inevitably time and trouble in making a complaint and bringing such a complaint to the Ombudsman. But the Ombudsman’s general view is that this only requires a remedy where there has been fault by the Council in the way it considered the complaint which meant the person affected spent time and trouble above what is considered usual. Our general guidance recommends payments of between £100 to £300 for time and trouble. I see no grounds to recommend the Council revisit the element of its compensation claim relating to Mr C’s own time and trouble.

The Council says it discussed the issue of a licence agreement to cover the period between the end of the first licence and the completion of the works in meetings and in correspondence with Mr C and his representative. The Council prepared and sent a draft document to Mr C for consideration. Mr C does not consider this was similar to his licence and describes it as a form of agreement.

Mr C did not confirm he wished to proceed with the new document as drafted but stated his view the original licence had not ended. The Council has addressed this assertion after obtaining legal advice that the original licence had ended and if a licence was required by Mr C he would need to enter into a new one. The Council says there is little point in now doing so as the works are complete. The Council says the compensation offered includes a sum to cover Mr C’s losses for being unable to occupy the field which equates to a licence fee. The Council does not consider there is any legal or financial benefit to Mr C of a licence. I am satisfied the matters for negotiation included the issue of the licence agreement although I accept Mr C would have preferred a different outcome.

The Council says it is now difficult to confirm if the original contractor strayed outside the agreed areas of the field. Mr C says there is good evidence the contractor used land outside the agreed area. However, the Council says it measured the whole field and the compensation figure includes the entire measured area rather than the affected areas only as it considered this was the most reasonable approach. The Council says the whole area was also included in the cultivation works for the same reason. The Council says this approach ensured all the area which could have been affected by its contractor was both cultivated and compensated for.

Based on the evidence provided, I see no fault in the Council’s general approach to the question of compensation. It is a matter for Mr C whether he wishes to accept the Council’s offer.

Mr C has more recently raised an issue about potential cadmium contamination. The Council provided a supplementary report to Mr C in early September with a copy to the Environment Agency. In summary, the report found the results were within typical concentrations. Mr C also referred to additional analysis he had not received which related to a request for an executive summary of the state of the land before the silt, during the various stages and now. The Council’s consultant prepared an executive summary and this was sent to Mr C and the Environment Agency in October 2018. The Council has received comments from Mr C about the report and is working with its consultants to prepare a response.

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